Klaus Mittelbachert vs East India Hotels Ltd.

Facts of the Case:

Klaus Mittelbachert, the plaintiff, a German national born on 2nd September 1942 was a
co-pilot in Lufthansa. Little did he know that his flight from Bangkok to New Delhi in
the evening of 11th August 1972 was his last ever flight as a co-pilot. He landed at Delhi
and was scheduled to continue the flight to Frankfurt on 14th August 1972. For the
intervening time, designated in the airline terminology as lay- over-period, he checked
into and stayed at the Hotel Oberoi Intercontinental.
In the afternoon of August 13, 1972 the plaintiff visited the swimming pool. At about
6.00 p.m. while diving the plaintiff met with an accident. He had hit his head on the
bottom of the swimming pool. He was taken out bleeding from right ear and appearing
to have paralyzed in the arms and the legs.
According to the plaintiff, the accident was caused by what in the circumstances
amounted to a trap. The diving board placed at the swimming pool suggested a proper
depth of water into which a swimmer could dive. The defendant hotel owed the plaintiff
a duty to take care and ensure his safety. Having failed therein the defendants are guilty
of negligence and are, therefore, liable to compensate the plaintiff for the consequences
flowing from the accident.

The defendants in their written statements have taken the plea that the plaintiff was in
the pool ever since 2.30 p.m. on 13.8.72. He had taken some drinks and was diving in the
pool repeatedly till the evening right from the afternoon. He was performing acrobatics,
dangerous in tendency, and many times he was warned by the hotel staff not to do such
dangerous acts from the diving board. Diving at a continuous stretch for about one-and-
a-half hour, the plaintiff was virtually exhausted. There was a notice also at the foot of
the diving board reading-- "dive at your own risk".

It was submitted by the learned counsel for the defendants that if the plaintiff is
choosing to enforce a liability arising out of a contract, then the suit has to be dismissed
at its threshold as the Hotel's contract was with Lufthansa and not with the plaintiff. The
plaintiff being a third party to the contract is not entitled to sue, submitted the learned
counsel.
A material event occurred during the pendency of the suit. On 27.9.1985 at 21.55 hrs the
plaintiff died of acute cardiac arrest.

For the purpose of determining the question of negligence I would divide the
consideration under two heads : (i)the direct evidence, and (ii) the evidence leading to
inference of negligence from failure on the part of the Hotel - as owner in discharge of its
duty to take care. The latter head would also deal with the evidence relating to
construction of swimming pool : Whether it was of a defective design from the point of
view of architectural and safety standards so as to amount to a trap?

According to the plaintiff he had gone to the swimming pool at 2.30 pm. He swum twice
or thrice, every time taking an hour's rest in between. At about 6 pm he wanted to have
a final swim with a dive from the three-meter high diving board. On the diving board he
started by taking two-three steps and made a dive with his head forward and the arms
stretched and closed over the head. He sustained injury in the first dive itself.

The fact remains that the absence of injuries on the hands is not necessarily a pointer to
the falsity of the plaintiff's version of his posture and position of the hands at the time of
taking the dive.

Degree of care is not a phrase with static connotation. Its meaning would depend on
given fact situation- the person who owes a duty to take care, the person whose care is
to be taken and the subject matter by reference to which degree of care is to be
determined. A person, who enters or walks into any premises, if the premises be open to
accept entry, and there be nothing warning against his entry, has a right to assume that
he is walking into a safe premises.

One who purchases a glass of water from a trolley in the street for 10 or 25 paise is
entitled to safe drinking water, which should not ordinarily infect him. But if person
purchases a mineral water bottle for Rs. 10/ or 15.00 then he can justifiably demand a
higher degree of purity. The manufacturer of water bottle cannot be heard to say so long
as he has made it equivalent to the trolley man's water he has done his duty and he
needs to do nothing more.

In the hotel culture the stars assigned to a hotel are suggestive of the professional
expertise, achievement and quality of the services available at the hotel and professed
and projected by it to the public at large, holding out invitation to the prospective guests
to stay at the hotel-- an assurance as to quality, safety and hazardless ness of the
services offered and available at the hotel. Such a higher degree of care cannot be
permitted to be got rid of by merely putting a signboard or caution notice that the guest
staying at the hotel does so at his own risk or a guest consuming or availing any of the
services offered by the hotel does so at his own risk.

A swimming pool in a hotel is an open invitation to the guests to swim in the pool either
subject to payment of extra charges or if it be without any charges then an impliedly
announcement that the charges were included in the overall charges for staying in the
hotel. Presence of a diving board at the head of the swimming pool is an invitation for
the guests to use it and dive in the swimming pool. In a hotel, the swimming pool filled
with water carries an implied warranty as to safety- that the swimming pool is
structurally and from architectural point of view so designed as to be safe, that the
water is free from infection, that the depth of the water is safe for swimming. In the
absence of a specific warning to the contrary, the swimming pool is an invitation not
only to those who have learnt the art of swimming but also to amateurs who may like to
take a plunge into water just for the pleasure of that. Availability of a diving board over
the swimming pool is an invitation to the guests to take dives into the swimming pool
with an implied warranty that the height and protrusion of the diving board or the
spring board.

The variation in the degree of care making it heavier co-relating the same with the
charges fixed and realised in consideration of offering a service assumes significance in
law for two purposes, Firstly, it has a bearing on the degree of care expected, either
express or implied. Secondly, it has a bearing on the amount of compensation that would
become payable in the event of failure to discharge the expected degree of care. Higher
the degree of care, higher the quantum of compensation, both flowing from rise in
charges realised for rendering the services.

the defendants that if the plaintiff is choosing to enforce a liability arising out of a
contract, then the suit has to be dismissed at its threshold as the Hotel's contract was
with Lufthansa and not with the plaintiff. The plaintiff being a third party to the contract
is not entitled to sue, submitted the learned counsel. This contention has to be rejected
obviously.

To sum up, the plaintiff is entitled to the following amount of damages on the following
heads : Head of damages Claimed Allowed Special (or pecuniary) damages Loss of salary
until Dm 1,72,500.00 Dm 1,28,206.00 the filing of the suit (judgment pr.97) Future Loss
of Income Dm 40,00,000.00 Nil Future Loss of Pension Dm 3,00,000.00 Nil Actual
expenses incurred on plaintiff's treatment- In India (judgment pr.104) Rs. 25,000.00 Rs.
15,847.00 In Germany Dm 3,50,000.00 Dm 5,00,000.00 Expenses on special diet
(judgment pr.107) Dm 31,200.00 Other expenses actually incurred (judgment pr.109)
Dm 2,68,515.87 Expenses incurred by wife on commuting for attending to the plaintiff
(judgment pr.110) Dm 12,000.00 Total, Rs. 15,847.00 Dm 4,39,921.87 Less- Amount
received from insurance (judgment Dm 2,80,000.00 pr.111) Net Total Dm 1,59,921.87
General ( or non-pecuniary) damages Pain and suffering and loss of enjoyment of life.
Dm 3,00,000.00 -For pain and suffering } (judgment pr 104 & 105} Rs. 18,00,000.00 }
Dm 3,00,000.00 -for loss of expectation} of life (judgment pr 103 & 105)} Dm
3,81,600.00 Total Dm 3,00,000.00 Grand Total Rs. 15,847.00 Dm 4,59,921.87 (113) The
Dm deserves to be converted into rupees at the current rate of exchange which is DM=
Rs. 22.45 ( the rate as on 2.1.97 as confirmed by the RBI). Calculated at this rate Dm
4,59,921.87 stand converted to Rs.1,02,71,365.98. The plaintiff has thus proved his
entitlement to damages quantified at Rs.1,03,25,245.98. The decree shall however,
remain confined to Rs.50,00,000.00 as prayed for by the plaintiff.

The contract for stay in the Hotel was between Lufthansa and the Hotel entitling
the crew of Lufthansa to stay as guest in the Hotel. The beneficiaries are those
who would stay and hence the contract was for their benefit. Consequent to the
breach of the contract those who stay in the Hotel would be entitled to sue. Any
other view of the law would create an anomaly. Those who are staying in the
Hotel would not be entitled to sue because they were not parties to the contract.
Lufthansa would not be entitled to sue as it has not suffered any injury. A view of
the law creating such an anomalous situation cannot be sustained.

(126) In tort of negligence liability arises from duty to take care. This is
independent of any contractual obligation. One who owns a structure, owes a duty
to take care to see that it is safe for a likely user; the exact details of the duty being
determinable by the nature of structure and its likely use.